Section 504 Presentation.Final

A School‟s Guide to
Section 504

Presented by: Debbie Bassett
February 4, 2012

What is Section 504 of the
Rehabilitation Act of 1973?
 Civil rights legislation
 Protects individuals with disabilities while
they are working or participating in
programs receiving federal financial
assistance
“Reasonable
steps to prevent
Prohibits exclusion
harassment”
from participation in
programs/activities
Accommodations
based solely on
to ensure equal
disability
opportunity

(Skalski & Stanek, 2010; Jacob & Hartshorne, 2007, p. 175)

History of Section 504 and
Special Education Law

History of Section 504
1964 Civil Rights Act: Title VI was amended to provide equal
educational opportunities to students with handicaps

1973 Rehabilitation Act of 1973 (Pub. L. No. 93-112): included
amended Title VI
 Schools dismissed or misunderstood the law
(i.e., antidiscrimination in the workplace)

1974 Amendment to Rehabilitation Act: clarify intent to prohibit
discrimination against students while in public school

1975 Schools focused on compliance with Education for All
Handicapped Children Act (Pub. L. No. 94-142)
 Certain students falling through the cracks

1979 Health, Education, and Welfare (HEW) began to require
compliance
(Jacob & Hartshorne, 2007)

History of Section 504
Late Legal Battles: schools not making accommodations
1980 Advocacy Efforts: Argument for services for ADHD

1990 Amendments of Pub. L. 94-142
 U.S. DOE memorandum: ADD/ADHD students may qualify
under IDEA, SLD, emotional disturbance, or 504.
Identified >20 strategies to assist students under 504

Americans with Disabilities Act: increased attention to
504 requirements/ grants protection beyond federally
funded organizations

1997 IDEA (formerly 94-142): provides another vehicle for
2004 accommodations
Trend: harassment claims on the rise
2009 Amendments to ADA
(Jacob & Hartshorne, 2007; Chapman, 2008)

Relationship of
Section 504 and
IDEA

Section 504 vs. IDEA
IDEA Section 504
Purpose Direct assessment, Prevent
planning, educational discrimination
provisions/services
Funding Provides state funding Does not provide
funding
Age Served Birth-21 or high school Lifetime
diploma
Population Schools All federally funded
programs
Procedural Specific rules and Not strictly
regulation requirements regulated

(Skalski & Stanek, 2010)

IDEA impact on Section 504
 2004 IDEA: Support learning or behavior
problems with special education funds (even if
students don‟t qualify for special education)
◦ Funds + ability to identify students as having
“other health impairment”= reduce 504s

 Recently, increased litigation for over-
identification of 504 eligibility
◦ “schools have “504‟d” pupils…because of
educational need rather than identification of a
handicap within the meaning of the law”
◦ Child receives label and stigma
(Jacob & Hartshorne, 2007, p. 179)

Section 504 vs. IDEA
Both can grant eligibility for special education,
accommodation, and related services
“All students who are disabled under IDEA are considered to be
handicapped and are…(protected by) Section 504”. However,
students not disabled under IDEA may qualify for 504 services.

IDEA Section 504

Eligibility under
Section 504
(Preventing
Discrimination)

Qualification for Section 504:
Breaking Down the Details
Section 504: (34 C.F.R. §104.4[a])
“No qualified handicapped person shall, on the
basis of handicap, be excluded from
participation in, be denied the benefits of, or
otherwise be subjected to discrimination under
any program or activity which receives Federal
financial assistance”

Does the child fit the qualifications for
“handicapped/disabled”?
(Skalski & Stanek, 2010, p. 1)

“Handicap/Disability” Defined

34 C.F.R. §§104.3 [j-l]
“…any person who (i) has a physical or
mental impairment which substantially limits
one or more major life activities, (ii) has a
record of such an impairment, or (iii) is
regarded as having such an impairment.”


“Physical or Mental Impairment”
Physical: “any Mental: “any mental or
physiological disorder psychological disorder, such
or condition affecting as emotional or mental
one or more body illness or a specific learning
systems” disability”

 Formal diagnosis is NOT required
 Diagnosis alone does not determine
eligibility


“Substantially Limit”
2008 ADAA (in effect 1/2009)

•Determination should be made “without regard for
mitigating measures such as medication, medical
supplies or equipment, prosthetics, hearing
aids, assistive technology, or auxiliary aids and
services”
•Exception: eyeglasses or contact lenses

•Note: Law doesn‟t apply to transitory or minor
impairments (actual/expected duration of <6 mo.)

• Can be considered “disabled” even when impairment
“only limits a major life activity occasionally or is in
remission”

“Major Life Activities”
34 C.F.R. § 104.3 [j][2][iii]
“…functions such as caring for one‟s self, performing
manual
tasks, walking, seeing, hearing, speaking, breathing, l
earning, and working.”
 Not exhaustive list
 ADAA allows for broader interpretations
(i.e., learning impairments include concentration, reading, thinking
difficulties)
 School accommodations: MUST show the disability
substantially limits a major life activity
What impact does the disability have in the child‟s setting?
What are the demands of the setting?

(Skalski & Stanek, 2010, U.S. Department of Education, 2009)

Remember FAPE
Free Appropriate Public Education

Under Section 504:
Regular/special education or services
are provided to “meet the individual
educational needs of children with
disabilities as adequately as the needs
of children without disabilities are met”
(Chapman, 2008, p. 82)

*Ask: “Is the child receiving FAPE?”
Does he have access? Can she
participate like her peers?

“Record of/ Regarded as having
such an impairment”
“Record of”: “history of, or has been misclassified as
having,” an impairment which limits major life activities

“Regarded as having an impairment”: (ADAA, 2008)
„„An individual meets the requirement of „being
regarded as having such an impairment‟ if the
individual establishes that he or she has been
subjected to an action prohibited under this Act
because of an actual or perceived physical or
mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.

(Jacob & Hartshorne, 2007, p. 182; Americans with Disabilities Amendment Act, 2008)

“Record of/ Regarded as having
such an impairment”
 Allow a person/student to qualify for
Section 504 if he/she hasn‟t received
formal, identified disability diagnosis
 Protects individuals from
discrimination “based on the
perception of a handicap”

(Skalski & Stanek, 2010; Jacob & Hartshorne, 2007, p. 183)

Section 504
(Disability Harassment
Protection)

Harassment Protection
Definition: “oral, written, graphic, or physical conduct relating to
an individual‟s disability that is sufficiently severe, pervasive, or
persistent so as to interfere with or limit the ability of an
individual to participate in or benefit from the district‟s programs
or activities” (Jacob & Hartshorne, 2007, p. 181)

 Section 504 & ADA: protects from
harassment and hate crimes
 IDEA: Courts can interpret persistent
harassment as a loss of FAPE in LRE (Shore
Regional High School v. P.S., 2004)
 Schools required “to take reasonable steps
to remedy harassment”

What are schools
required to do?

School Procedures:
What are we legally required to do?
 District select 1 person (Section 504 Coordinator)
◦ Create working system to comply with legal
requirements
◦ Have a system of procedural safeguards available
permitting “parents to challenge actions regarding
the identification, evaluation, or educational
placement”
 i.e., Grievance procedures, standards for due process and
resolution of complaints

 Regularly notify/inform parents and students “that
it does not discriminate in its programs and
activities on the basis of handicap (34 C.F.R. 104.8)”
 Written plan not required
(Jacob & Hartshorne, 2007, p. 189, 180)

School Procedures: Best Practice
According to Skalski & Stanek (2010),
schools need 4 processes established:

1. Method to advise parents of legal rights
 “General and individual notice for the
identification, evaluation, and placement of a
student with a disability”
 Notice of meeting when considering eligibility
Notice in Writing? Not required but good practice
Not required to invite parents, but good practice
 Notify parents of Section 504 rights
Ex: Disciplinary standards and suspensions
(Chapman, 2008; Skalski & Stanek, 2010, p. 2, 4)


2. Eligibility Evaluation:
Identification by a Multidisciplinary Team
 Who? Knowledgeable about student, placement options,
assessments conducted, etc.

 Goals:
Identify if disability exists: current, valid assessments
Consider FAPE rights within the LRE

 Parental Consent: Attain for testing beyond those given
to all students AND/OR if determining need for special
education


3. Develop/ Implement IAP or 504 Plan
(Individual Accommodation Plan)
 No standardized format
 504 doesn‟t require a written plan, but most district use
a written plan
 Provide evidence supporting claim that disability fits
criteria of Section 504 + accommodations allowing
same rights as peers

(Skalski & Stanek, 2010, p. 4; Chapman, 2008)

3. Develop/ Implement IAP or 504 Plan
What are reasonable accommodations?
•Afford “equal opportunity” or “equal access”
•Specific, unique to impairment
•“should not fundamentally alter the nature of the activity or
provide a student with an unfair advantage” If it does, IAP
should indicate how the accommodation modifies the
program‟s nature. (Skalski & Stanek, 2010, p. 4)

What about testing accommodations?
Cannot interfere with validity or change nature of
examination


4. Periodic Review
 No specific reevaluation guidelines
Office of Civil Rights:
IDEA 2004 guidelines for reevaluations sufficient for Sec. 504
Reevaluation not required every three years
Significant change warrants a review
 At review, Multidisciplinary team decides:
(a) Does impairment still fit criteria of Section 504?
(b) Is the IAP “needed to protect a student from
discrimination?”
(c) Does the IAP grant equal learning opportunity?
(d) Are there new circumstances to address?

(Skalski & Stanek, 2010, p. 5; Jacob & Hartshorne, 2007)

Child referred for Suspect student may “qualify as handicapped”
eval. Under IDEA: and need services/accommodations
not found eligible

Request parent permission for evaluation
Early intervening Notify parents of 504 meeting (invitation not required)
services or informal Inform parents of legal rights & school‟s duties under
class accommodations Section 504
unless impairment
under Sec 504
Conduct evaluations (similar IDEA guidelines)

With Multidisciplinary Team, determine:
Specific 1. Physical or mental impairment?
diagnosis 2. Is a major life activity substantially limited?
isn‟t 3. What accommodations are necessary so he/she can “enjoy the
required benefits of the school program”?
Time periods for evaluations not specified- 1992 case found its
reasonable to follow IDEA time frames

YES NO

Develop accommodation plan or IEP

Student has physical disability and appears to be able to access and
participate in school programs with medical equipment ? Does he
require a Section 504? No; already receiving FAPE. Doesn‟t need
accommodations or services. (Keep in mind ADAA regarding mitigating measures)

Parent requests an evaluation but the school disagrees? Are you legally
required to evaluate the student? No. School aren‟t required to conduct an
evaluation based solely on parental suspicion, but still need to provide information
on parent‟s legal right to contest and resolution procedures

You work in an older school. Is it required that all buildings be made
physically accessible? “Not necessarily. While buildings constructed after the
Section 504 regulation was issued (that is, those built since 1977) must be fully
accessible, older buildings do not have to be made fully accessible. For older
buildings, the law requires that the program or activity be made accessible. A
common way this is done is to relocate the program to another building that is
accessible.” (U.S. Department of Education, 2005)

Noncompliance in Schools
Office for Civil Rights:
 Investigates Section 504 complaints
 Reviews policies & practices regarding
particular condition (e.g., ADHD, CI)
 Ability to remove federal funds for
noncompliance

(Jacob & Hartshorne, 2007)

Resources
 Rules and Regulations: 34 C.F.R. Part 104
◦ http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html

Skalski & Stanek (2010) recommendations:
 Huefner, D.S. (2006). Getting comfortable with special
education law: A framework for working with children with
disabilities (2nd ed.). Norwood, MA: Christopher Gordon
Publishers.

 Zirkel, P.A. (2009). The ADAA and its effects on Section 504
students. Journal of Special Education Leadership, 22(1), 3-8.

 **Wrightslaw: http://www.wrightslaw.com
◦ http://www.wrightslaw.com/info/sec504.summ.rights.htm

References
Chapman, R. (2008). The everyday guide to special education
law (2nd ed.). Denver: The Donohue Group, Inc.
Jacob, S., & Hartshorne, T.S. (2007). Ethics and law for school
psychologists (5th ed.). New York: Wiley.
Skalski, A.K., & Stanek, J. (2010). Section 504: A guide for
parents and educators. National Association of School
Psychology: Helping Children at Home and School III, pg.
S8H35-S8H35-5. Bethesda, MD.

Section 504 Presentation.Final

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